Women chosen as neutrals less often than men, ABA study shows

Women are not being selected as either “neutrals” or “advocates” in complex dispute resolution cases as often as their male counterparts, according to new research published in the spring issue of Dispute Resolution Magazine.

The study, developed by the Women in Dispute Resolution Committee of the ABA Section of Dispute Resolution, suggests the type of dispute and subject matter clearly impact neutral selection. A key finding: The higher the dollar amount involved in a mediation dispute, the lower the likelihood that the impartial mediator, or neutral, would be a woman.

The article, “Gender Differences in Dispute Resolution Practice,"was written by Andrea Kupfer Schneider of Marquette University Law School and Gina Viola Brown, associate director of the Section. The authors focused primarily on the prevalence of women in mediation and arbitration cases.

In fall of 2012, Schneider and Brown sent a survey to all lawyers in the section, asking detailed questions about their most recent two disputes. A total of 6,284 lawyer-members were queried, with a response rate of 11.8 percent. Men responded at nearly double the rate of women — 66 percent to 34 percent — which reflected the gender breakdown of section membership.

“If you follow the money, the figures are not encouraging,” the authors said of their findings. “In mediated cases, women serve as neutrals much more often in cases with no money in dispute or small disputes involving claims under $100,000. Of the 166 cases with more than $1 million in dispute, women were mediators in 23 percent (38) of them. Of the 263 nonmonetary or smaller dollar-amount disputes, women were the mediators in 54 percent of these cases.”

In arbitration cases, however, the participation of women as neutrals was higher although still not consistent with the gender breakdown of the section’s membership.

“One step to fixing gender imbalance is to recognize that there are a number of differentials between men and women neutrals. The next step is to figure out why,” the researchers wrote. “One potential theory is that the gender differential reflects experience. In other words, one might argue that lawyers and parties select their neutrals based on years of experience. Since fewer women than men have many decades of practice experience, one might argue that this is why women are selected less often, at least in certain types of cases.”

The authors found this theory could explain construction disputes, which appear “to select quite experienced neutrals,” and in consumer or family disputes, which appear “to select a mix of ages.” But it falters after that.

“This does not appear to be the case in commercial disputes, where the difference in years of practice is not nearly as great as the gender difference, or in intellectual property (which skews young but not female) or in energy (which skews more experienced but also more evenly female),” they wrote. “So experience does not appear to be a satisfactory answer. Perhaps the neutral’s previous work as a judge or in private practice (which skews more male) might also explain some of the neutral selection.”

Schneider teaches alternative dispute resolution, negotiation, ethics and international conflict resolution and is director of Marquette’s nationally ranked Dispute Resolution Program. Brown is editor of Dispute Resolution Magazine, among her other duties at the section.